In a case before Robert Gigante, sitting in Richmond County, New York, the Surrogate Judge had set aside a trust based on the lack of mental capacity of the individual who executed the trust. One of the decedent’s children contacted a lawyer and requested the trust document to be drafted. The lawyer drafted the documents pursuant to the request of the decedent’s child. However, the lawyer never met or spoke with the decedent. The lawyer relied on the child’s statements and a letter from a physician stating the decedent was “in an acceptable mental status.”
The court took the position there were questions as to whether the decedent could understand the terms and the conditions of the trust. A hearing was held. A doctor testified he didn’t believe the decedent could read and understand a sales contract. In its decision, the court stated no rebuttal testimony or evidence challenging the doctor’s conclusions was submitted to the court.
The court found the decedent lacked the requisite mental capacity necessary for the purpose of executing the trust. The court therefore set aside the trust.
About the Author
Elliot S. Schlissel, Esq. is a member of the National Academy of Elder Law Attorneys. He represents individuals in will contests, litigation regarding trusts and all other estate related matters. He offers free consultations to his clients.
